Real Women, Real Rape

Abstract

There are several reasons to find rape shield laws troubling. From the point of view of many defense lawyers and civil libertarians, rape shield laws, by curtailing a defendant’s ability to offer evidence of an accuser’s prior sexual conduct, unfairly circumscribe a defendant’s right to confront witnesses and present relevant evidence in his defense. By contrast, rape shield proponents argue that rape shield laws are too weak and are so riddled with exceptions that they amount to little more than sieves. This Article calls attention to two other problems with rape shield laws—problems that can be traced to the very enactment of rape shield laws but that for the most part have remained hidden, unnoticed, and unremarked on. The first problem concerns the expressive message implicitly communicated by rape shield laws: that jurors should assume the complainant is a virgin, or at least notionally a good girl, and thus deserving of the law’s protection. Because of rape shield laws, any suggestion that women may lead healthy sexual lives is quietly pushed to the side and corseted. In short, the concern is that in pushing for rape shield laws feminists, victim rights advocates, and prosecutors have reinscribed the very chastity requirement they hoped to abolish. The second problem is what I term expressive message failure, which occurs when a rape shield’s message conflicts with preexisting rape scripts: those assumptions we have about what rapists look like, what constitutes rape, and most importantly here, what rape victims look like. The Article sketches out solutions to these specific problems and gestures toward a broader solution to tackle other flaws with rape shield laws.